Franklin v. Wigton
| Decision Date | 12 June 1928 |
| Docket Number | Case Number: 18160 |
| Citation | 132 Okla. 236,1928 OK 390,270 P. 1 |
| Parties | FRANKLIN et al. v. WIGTON. |
| Court | Oklahoma Supreme Court |
¶0 1. Oil and Gas--Liability of Lessee to Lessor for Gas Rental Where Gas "Used off the Premises"--Use of Gas for Pumping Oil Well on Adjoining Lease.
Where a lessee in an oil and gas lease agrees to pay as gas rental $ 300 each year in advance from each well where gas only is found, while the same is being used off the premises, such lessee is liable to lessors in said sum while using gas from the well on lessors' land to pump an oil well owned by lessee, located on a lease adjoining lessors' land, notwithstanding an oil well on lessors' land from which they are receiving royalty is being pumped at the same time with the same power and notwithstanding the pumping of both wells required the use of no more gas than would have been required to pump the well on land of lessors alone.
2. Oil and Gas--Implied Covenant of Lessee to Drill Offset Well Only When Adjacent Production is in Paying Quantity.
A lessee of an oil and gas lease, upon an implied covenant to prevent drainage, is not required to drill an offset well unless oil or gas is found in adjacent lands near the boundary line of lessors' land in sufficient quantity to pay a reasonable profit on the whole sum required to be expended, including the cost of drilling, equipping, and operating the well.
Commissioners' Opinion, Division No. 2.
Error from District Court, Okmulgee County; Charles C. Smith, Judge.
Action by W. C. Franklin and others against B. L. Wigton. Judgment for defendant, and plaintiffs appeal. Affirmed in part, and reversed in part.
Cochran & Ellison and E. T. Noble, for defendant in error.
¶1 W. C. Franklin, Josephine M. Franklin, P. J. Carney and Mary T. Carney sue B. L. Wigton on two separate causes of action, the first being to recover gas rentals for gas taken from a well drilled under a lease of plaintiffs' land and used off the premises; second, for damages for failure to drill an offset well. Defendant obtained a verdict in his favor from the jury on the first cause of action and the court sustained a demurrer to plaintiffs' evidence on the second. Plaintiffs appeal.
¶2 Defendant, under his lease, drilled a small gas well on plaintiffs' land. Prior thereto there was also drilled on said land a small producing oil well. The controversy grows out of the refusal of defendant to pay gas rentals. The provision of the lease applicable to such payment is as follows:
"To pay to the first parties $ 300 each year in advance for the gas from each well where gas only is found while the same is being used off the premises."
¶3 The evidence discloses that the defendant was the owner of an oil well located on land adjoining plaintiffs' land, and was also the owner of the oil well located on plaintiffs' land. Gas from the well on plaintiffs' land was used by defendant for the purpose of pumping both wells. Both wells were pumped at the same time and with the same power. Plaintiffs claim the rental as provided by the terms of the lease because of the use of the gas by defendant in pumping his individual well on the adjoining lease. Plaintiffs contend that this constitutes a use of the gas off the leased premises, and on this theory requested the trial court to direct a verdict in their favor. The refusal so to instruct is assigned as error.
¶4 The testimony shows, and it is undisputed, that both wells were pumped at the same time and with the same power; that no more gas would be consumed in pumping both wells than would be necessary to consume in pumping the well on plaintiffs' land alone, and for this reason defendant contends that plaintiffs are not entitled to recover.
¶5 We are of the opinion that the court should have sustained plaintiffs' motion for a directed verdict. The defendant obligated himself to pay $ 300 a year as rental while gas was being used off the premises. The obligation is not made to depend upon the quantity used but upon the manner of its use; that is, its use off the leased premises. That defendant had the use and benefit of plaintiffs' gas to pump his well on the adjoining lease is not denied. This being true, he should not be allowed to profit by such use without compensation to the plaintiffs.
¶6 In this conclusion we are supported by the following authorities: Mathes et al. v. Shaw Oil Co. (Kan.) 80 Kan. 181, 101 P. 998; Mathes et al. v. Shaw...
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